All Tech Considered

3:54 pm

Mon July 21, 2014

1 Million Net Neutrality Comments Filed, But Will They Matter?

Complaints about Janet Jackson's Super Bowl halftime show performance of 2004 led to a record number of public interactions with the Federal Communications Commission. This year's net neutrality comments come in second.

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The Federal Communications Commission received more than 1 million public comments on the issue of net neutrality during a five-month commenting period that ended Friday.

It's the biggest public response the FCC has ever gotten on a policy matter in such a short period, and the second most commented-upon FCC issue, period. It ranks just behind the 1.4 million complaints received after Janet Jackson's Super Bowl wardrobe malfunction, which isn't a direct comparison because those were spontaneous comments unrelated to a rule-making matter.

"It's great that these issues resonate with the broader public," says Gigi Sohn, who heads public engagement for the FCC. "They want to be heard. And they want to participate."

Now it's the agency's job to help cull and make sense of the 1,067,779 comments that came in over a five-month period. The FCC says it's using technological approaches and staff from all over the country to help summarize, highlight and analyze the messages for FCC commissioners, who won't see the filings in full.

A record-setting number of Americans weighed in with their thoughts on this matter. But there's one problem, according to George Washington University law professor Richard Pierce.

"The vast majority of the comments are utterly worthless," Pierce says.

He reviewed academic research on previous rule-making matters, like banking reform.

"This has been studied quite a bit by some very good academics," he says. And the studies show that rule-making or policymaking tends to be systemically biased to favor the industries that are affected by the regulation.

In a recent example, Pierce points to the work of Kimberly Krawiec. Krawiec read all of the comments that were submitted in the rule-making that led to the Volcker rule — part of the Dodd-Frank Act's banking reforms. She also reviewed the logs that described the meetings that agency decision makers had with parties who were interested in the outcome of that proceeding.

Krawiec found that, while proponents of strict regulation of financial institutions dominated the comment process numerically, their comments were useless to decision makers, because the vast majority of them were identical form letters without data or analysis.

The folks who do comment with the detail, data and analysis that can change minds? Deep-pocketed industries.

"Those comments that have some potential to influence are the very lengthy, very well-tailored comments that include a lot of discussion of legal issues, a lot of discussion of policy issues, lots of data, lots of analysis," Pierce says. "Those are submitted exclusively by firms that have a large amount of money at stake in the rule-making and the lawyers and trade associations that are represented by those firms."

The FCC's Gigi Sohn also cautions against using the high number of comments in this matter as a tea leaf, because of the unknown content in the comments.

"A lot of these comments are one paragraph, two paragraphs, they don't have much substance beyond, 'we want strong net neutrality, ' " she says.

Former FCC commissioner Robert McDowell served from 2006 to 2013. During his time, one hot issue was how many radio and TV stations and newspapers could be owned by the same company. The high-profile issue sent the commission on the road for public hearings. Commissioners stayed up late to hear comments, but not all of it was useful, as he recalls.

"Sometimes people complained about things that had nothing to do with media and ownership. I heard things about global warming, the war in Iraq, and even the Peloponnesian War," McDowell says.

Pierce, the law professor, suggests another way to weigh public opinion that is much less cumbersome than filtering through a million comments.

"Take a look at things like public opinion polls. A public opinion poll is a far more reliable indicator of what the public thinks about an issue like net neutrality than a bunch of postcards or one-liners," he says.

Research shows public comments don't affect outcomes. And history shows it, too. That Janet Jackson nip-slip of 2004? About 1.4 million complaints came in, and the agency announced serious fines. But in the end, after a lot of legal back and forth, TV broadcaster CBS never paid a dime.

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Transcript

ROBERT SIEGEL, HOST:

And now, All Tech Considered.

(MUSIC)

SIEGEL: Today, we're talking about the Internet - how it could be regulated and how providers charge for it. This is such a hot topic that it provoked the biggest response the FCC has ever seen on a policy matter. The Federal Communications Commission received 1,067,779 comments by Friday night's deadline. The FCC invited those comments as part of its effort to write new rules to keep the Internet open. It's a subject often called net neutrality. NPR's Elise Hu reports on what they'll do with all those comments.

ELISE HU, BYLINE: The FCC has heard from a lot of Americans at the same time at least once before.

HU: That was 10 years ago, when the clothing that was supposed to cover Janet Jackson's chest didn't.

(SOUNDBITE OF SUPER BOWL HALFTIME SHOW)

JUSTIN TIMBERLAKE: (Singing) Gonna have you naked by the end of this song.

GIGI SOHN: When Janet Jackson had her wardrobe malfunction in the Super Bowl in 2004, there were 1.4 million complaints.

HU: That's Gigi Sohn. She runs public engagement at the FCC. Today, the wonky issue of net neutrality has gotten almost as much public interest as that Super Bowl moment, when the FCC fielded complaints. Net neutrality's not a direct comparison because these 1,067,000 comments that came in are on an official policy matter.

SOHN: If it is not the single most commented upon complained about issue in the history, it's now the second most.

HU: Now it's the agency's job to help cull and make sense of the comments. The FCC says it's using both technological approaches and staff from all over the country to help summarize, highlight and analyze the messages for commissioners who won't see the filings in full.

SOHN: It's great that these issues resonate with the broader public and they want to be heard and they want to participate.

HU: On net neutrality, a key question is whether cable companies get to charge content providers extra fees to deliver faster service. A record-setting number of Americans weighed in, but there's one problem.

RICHARD PIERCE: The vast majority of the comments are utterly worthless.

HU: George Washington University law professor Richard Pierce reviewed research on previous rulemaking matters like banking reform.

PIERCE: This has been studied quite a bit by some very good academics.

HU: The studies show that even if a million comments come in on an issue, and even if 90 percent of them take one side on a matter, chances are they won't change policymaker minds, unless you represent a deep-pocketed industry.

PIERCE: Those comments that have some potential to influence an agency are the very lengthy, very well tailored comments that include a lot of discussion of legal issues, a lot of discussion of policy issues, lots of data, lots of analysis - those are submitted exclusively by firms that have a large amount of money at stake in the rulemaking.

HU: It's not just that public comments don't have the weight of industry influence - the comments themselves may not have much to them. The FCC's Gigi Sohn.

SOHN: A lot of these comments are one paragraph, two paragraphs. They don't have much substance beyond, you know, we want strong net neutrality.

HU: When former FCC Commissioner Robert McDowell was on the job, one hot issue was media ownership, or how many radio, TV stations and newspapers could be owned by the same company.

ROBERT MCDOWELL: Media ownership was a very high-profile proceeding. It goes through cycles every few years at the FCC. But the '06, '07 was certainly a watershed moment in terms of the commission going on the road and seeking comments in person.

HU: Commissioners stayed up late to hear every last comment at these hearings, but not all of it was useful, as McDowell recalls.

MCDOWELL: And sometimes people complained about things that had nothing to do with media and ownership. I heard complaints about global warming, the war for in Iraq and even the Peloponnesian war.

HU: Pierce, the law professor, suggests another way to weigh public opinion that's much less cumbersome than culling a million comments.

PIERCE: Take a look at these, like, public opinion polls. You know, a public opinion poll is a far more reliable indicator of what the public thinks about an issue like net neutrality then, you know, a bunch of postcards or one- liners.

HU: The research shows public comments don't effect outcomes - history shows it too. That Janet Jackson nip slip - 1.4 million complaints came in and the agency announced serious fines. But in the end, after a lot of action in the courts, TV broadcaster CBS never paid a dime. Elise Hu, NPR News, Washington. Transcript provided by NPR, Copyright NPR.